Provisional Constitution Order No. 1 of 1999 (hereinafter referred to as “the PCO No. 1 of 1999”) was issued, which reads as follows: –
THE PCO NO. 1 OF 1999
“In pursuance of Proclamation of the 14th day of October, 1999, and in exercise of all powers enabling him in that behalf, the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff and Chief Executive of the Islamic Republic of Pakistan under the Proclamation of Emergency of 14th October 1999 (hereinafter referred to as the Chief Executive) is pleased to make and promulgate the following Order-
(1) This Order may be called Provisional Constitution Order No. 1 of 1999.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.
(2) Subject as aforesaid, all courts in existence immediately before the Commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Court or High Courts and any other court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.
(3) The Fundamental rights conferred by Chapter 1 of Part II of the Constitution, not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force.
3- (1) The President shall act on, and in accordance, with the advice of the Chief Executive.
(2) The Governor of a Province shall act on, and in accordance with the instructions of the Chief Executive.
4- (1) No Court, tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October, 1999 or any Order made in pursuance thereof.
(2) No judgement, decree, writ, order or process whatsoever shall be made or issued by any court or tribunal against the Chief Executive or any authority designated by the Chief Executive.
5- (1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution, all Ordinances, Orders, Rules, Bye laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan whether made by the President or the Governor of a Province, shall be inserted and shall be deemed to have always been so inserted, shall continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him.
(2) In all laws including all Acts, Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and all other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, the words, “Prime Minister”, and the words, “Chief Minister”, wherever occurring, shall be deemed substituted by the words, “Chief Executive of the Islamic Republic of Pakistan”, and “Governor” respectively.
5A- (1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution.
(2) The provisions of Clause (1) shall also apply to an Ordinance issued by the President or by the Governor, which was in force immediately before the commencement of the proclamation Order of Chief Executive of the Fourteenth day of October 1999.
Subject to the Proclamation Order of the Chief Executive of the Fourteenth day of October, 1999 and the provisions of the Provisional Constitution Order No. 1 of 1999 as amended, the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province on instructions of the Chief Executive, may issue and promulgate Ordinances which shall not be subject to the limitation as to their duration prescribed in the Constitution.
6- The Proclamation of Emergency issued on 28th day of May 1998, shall continue but subject to the provisions of Proclamation of Emergency dated 14th day of October 1999 and this Provisional Constitution Order and any other Order made thereunder.
7- All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor-General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.”
The takeover by the Army was challenged in this Court through several Constitution Petitions and the same were disposed of with certain guidelines through a unanimous judgment authored by Irshad Hasan Khan, C.J. (as he then was) in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869). However, before dealing with the said judgment, it is pertinent to mention that the former President Mr. Muhammad Rafiq Tarar continued in office under the Proclamation of Emergency and the PCO No. 1 of 1999. On 20th June, 2001 the Chief Executive issued the CE Order No. 2 of 2001 in pursuance of the Proclamation of Emergency (Amendment) Order, 2001. It came into force at once. It substituted clause (b) of para 2 of the Proclamation of Emergency. Clause (b) reads as follows: –
“(b) The person holding the office of the President of the Islamic Republic of Pakistan immediately before the commencement of the Proclamation of Emergency (Amendment) Order, 2001, shall cease to hold the office with immediate effect.”
Under the same Order, in clause (c) of para 2 ibid, the word ‘suspended’ was substituted with the words ‘dissolved with immediate effect’. Clause (d) of para 2 ibid. was substituted as under: –
“(d) The Chairman and Deputy Chairman of the Senate have already ceased to hold office; the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies shall also cease to hold office with immediate effect.”
On the same day, i.e. the 20th of June, 2001, the Chief Executive issued the CE Order No. 3 of 2001. The Preamble to the said Order reads as under: –
“Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, in pursuance of the Proclamation of Emergency of the fourteenth day of October 1999 and the Provisional Constitution Order 1 of 1999 and in exercise of all powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the following Order.”
The CE Order No. 3 of 2001 provided that it shall have effect notwithstanding anything contained in the Constitution or any other law. Under para 3(1), it was provided that upon the office of the President becoming vacant for any reason whatsoever, the Chief Executive of the Islamic Republic of Pakistan shall be the President of the Islamic Republic of Pakistan and shall perform all functions assigned to the President by or under the Constitution or by or under any law. It was further provided that the Chief Executive shall hold office as President until his successor enters upon his office.
